Karnataka High Court
Shivappa Ramappa Maregondra vs Ramapa Chandrappa Maregoundra on 8 August, 2013
Author: N.Kumar
Bench: N.Kumar
:1:
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 08TH DAY OF AUGUST 2013
BEFORE
THE HON'BLE MR.JUSTICE N.KUMAR
RSA No.881/2003 (PAR & SP)
Between:
1. Shivappa Ramappa Maregondra,
Age 53 years,
Since dead by LRs.
1(a) Ramesh S/o.Shivappa Maregondra,
Age 45 eyars, Occ.: Agriculture,
R/o.: Betakerur, Tq.: Hirekerur,
Dist.: Haveri.
1(b) Venkatesh S/o.Shivappa Maregondra,
Age 33 years, Occ.: Agriculture,
R/o.: Betakerur, Tq.: Hirekerur,
Dist.: Haveri.
1(c) Nagesh S/o.Shivappa Maregondra,
Age 30 years, Occ.: Agriculture,
R/o.: Betakerur, Tq.: Hirekerur,
Dist.: Haveri.
1(d) Rajeshekher S/o.Shivappa Maregondra,
Age 28 years, Occ.: Agriculture,
R/o.: Betakerur, Tq.: Hirekerur,
Dist.: Haveri.
:2:
2. Shekarappa Ramappa Maregondra,
Age 43 years,
3. Rudrappa Ramappa Maregondra,
Age 48 years,
4. Timmappa Ramappa Maregondra,
Age 31 years,
5. Basanagounda Ramappa Maregondra,
Age 31 years,
All are R/o.: Betakerur, Tq.: Hirekerur,
Dist.: Haveri.
... APPELLANTS
(BY SRI.AVINASH BANAKAR FOR SRI.K.V.PATIL, ADV.)
AND:
1. Ramapa Chandrappa Maregoundra,
Age 53 years,
2. Hanumagounda Chandrappa Maregondra,
Age 52 years,
3. Smt.Puttavva W/o.Bhimappa Maregondar,
Age 48 years,
4. Smt.Halawwa W/o.Puttappa Ukkund,
Since dead by LRs.
4(a) Kumari Vanajakshi,
D/o.Puttappa Ukkunda,
Age 19 years,
:3:
4(b) Puttappa Ukkund,
Age 50 years,
5. Chanabasavva Puttappa Ukkund,
Age 42 years,
6. Kumari Shantavva,
W/o.Bheemappa Maregoundra,
Age 32 years,
7. Kumari Girijavva,
W/o.Bheemappa Maregoundra,
Age 31 years,
All are R/o.: Betakerur,
Tq.: Hirekerur, Dist.: Haveri.
... RESPONDENTS
(By Sri.P.G.Mogali, ADV. for R1 - R3, R5 - R7.
R4(a) & (b) are served)
This RSA is filed u/S.100 of CPC against the
judgment and decree dated 02.09.2003 passed in
R.A.No.2/1996 on the file of the Civil Judge (Sr.Dn.) &
Prl. JMFC, Ranebennur, allowing the appeal and
modifying the judgment and decree dated 27.11.1995
passed in O.S.No.69/1990 on the file of the Munsiff,
Hirekerur.
This appeal coming on for final hearing this day,
the Court, made the following:
:4:
JUDGMENT
This is a plaintiffs' second appeal against the judgment and decree of the lower appellate Court, which has decreed the suit of the plaintiffs for partition and separate possession granting half share to the plaintiffs and the defendants.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
3. The subject matter of the suit is, the land bearing Sy.No.210/3 measuring 27 guntas situated in Betakerur village, Hirekerur Taluk, Dharwad District now Haveri District. Initially, the plaintiffs had filed a suit for declaration claiming 2/3rd share in the suit schedule property. On 24.08.1982 he sought for an amendment converting the suit for declaration of title into the suit for partition and separate possession of his 2/3rd share in the plaint schedule property. :5:
4. The suit schedule property initially belonged to one Ramappa. Ramappa had three sons by name Basavanneppa, Gurubasappa and Chandrappa Gurubasappa's son is one Ramappa. The plaintiffs are the children of the said Ramappa. The defendant is Chandrappa. The defendants are representing the branch of Chandrappa as his legal heirs.
5. The case of the plaintiffs is that the schedule property is a co-parcenery property. The three sons of Ramappa had 1/3rd undivided share. Basavanneppa was not married. He had no issues. Therefore, he executed a gift deed dated 09.03.1950 bequeathing his 1/3rd share in favour of Ramappa, the plaintiff's father. The said gift deed is duly registered. By mistake, in the gift deed, it is stated that he is bequeathing half share in the schedule property, it is a mistake. Even after the said gift deed, the parties continued to enjoy the property jointly. When an attempt was made by the :6: defendants to disturb the plaintiffs' enjoyment of the property to the extent of 2/3rd share and that they denied his title to 2/3rd share, he was constrained to file a suit for declaration that he is entitled to 2/3rd share in the suit schedule property.
6. After service of summons, the defendants entered appearance. They filed the written statement. They did not dispute the relationship and the nature of the property. They contended that as the said property is co-parcenery property, Basavanneppa had no right to gift his undivided share in the schedule property in favour of Ramappa. In fact, he has not executed any such gift deed. The gift deed on which reliance is placed is a fabricated document. As all of them are enjoying the property jointly and now that Basavanneppa is dead, each of the branch is entitled to half share.
7. As stated earlier, subsequently, by way of an amendment, the plaintiffs converted the suit for :7: declaration into a suit for partition and separate possession. He contended that he is entitled to 2/3rd share, whereas, the defendants contend that each one of them are entitled to half share.
8. The trial Court framed the following issues and additional issues:
(1) Whether the plaintiffs prove that they are entitled to 2/3rd share or any share in the suit schedule property? (2) Whether plaintiffs prove that they are in joint possession of the suit schedule property along with the defendants? (3) What decree or order?
Additional issues:
(1) Whether all the defendants are jointly entitled to 1/3 share or any share in all the suit schedule properties? (2) Whether the plaintiffs prove that the suit property is not liable to be partitioned? :8: (3) Whether the Court fee paid is proper?
9. The plaintiff in order to substantiate their claim, examined 1st plaintiff as PW1 and they also examined one witness as PW2 and produced 9 documents, which came to be marked as Exs.P1 to P9. On behalf of the defendants, Puttawwa was examined as DW1 and they also examined DW2 and produced 3 documents, which came to be marked as Exs.D1 to D3.
10. The trial Court on appreciation of the aforesaid oral and documentary evidence on record held that the plaintiffs proved that they are entitled to 2/3rd share in the suit schedule property and it also held that the plaintiffs are entitled to a decree for partition declaring that the plaintiffs share as 2/3rd.
11. Aggrieved by the said judgment and decree of the trial Court, the defendants preferred an appeal. The lower appellate Court framed the following points for consideration:
:9:
1) Whether learned trial Court committed error in holding that plaitniffs are entitled 2/3rd share in the suit schedule properties?
2) Whether trial Court committed error in believing the Ex.P5 the gift deed?
3) Whether the learned trial Court grossly erred in declaring the right of plaintiffs to the extent 2/3rd share i.e., 18 guntas in the suit property?
4) Whether the judgment and decree under appeal requires interference?
5) What order?
12. The lower appellate Court held that the gift deed on which reliance is placed is void and therefore, the plaintiffs did not acquire 1/3rd share in the schedule property. It held that as Basavanneppa is no more, his share is inherited by the other two brothers by way of survivorship. Therefore, each one of them are entitled to half share and thus, it allowed the appeal, set aside the : 10 : judgment and decree of the trial Court and granted decree for partition and separate possession in respect of ½ portion. Aggrieved by the said judgment and decree of the lower appellate Court, the plaintiffs are in second appeal.
13. This appeal came to be admitted on 13.09.2004 to consider the following substantial questions of law:
"1. Whether the 1st appellate Court was justified in holding that Basavaneppa did not have legal right to execute the gift deed dated 09.03.1950 in favour of the plaintiffs on the reasoning that the suit property remained as co-pacenery property?
2. Whether the finding of the 1st appellate Court does call for interference? What order?"
14. The learned counsel appearing for the appellants assailing the impugned judgment and decree of the lower appellate Court contended that when : 11 : Basavanneppa executed the gift deed dated 09.03.1950, which is marked as Ex.P5, which was executed nearly 40 years prior to filing of the suit, the plaintiffs were exclusively entitled to their 1/3rd share. Admittedly, when they have another 1/3rd share, they were entitled to 2/3rd share. The lower appellate Court committed a serious error in interfering with trial Court judgment.
15. Per contra, the learned counsel appearing for the defendants submitted that the gift deed is a compulsorily attestable document, no attesting witnesses were examined in proof of execution of the gift deed. Even other wise, the schedule property is a co- parcenery property, there was no partition between the brothers. What is gifted by one co-parcenar in favour of another co-parcener's son is his undivided interest. Prior to 1956, the law was well settled that the co- parcenar cannot gift the undevided share in the co- parenerry property. Therefore, the trial Court was : 12 : justified in holding that the gift deed is not proved and the gift deed is void and therefore, each one of them are entitled to half share.
16. The material on record discloses that the schedule property is a coparcenery property. Basavanneppa, Gurushantappa and Chandrappa were the co-parceners. There was no partition among them. Therefore, each one of them had an undivided 1/3rd share in the schedule property. Ex.P.5 is a registered gift deed dated 09.03.1950 under which Basavanneppa gifted half share in the schedule property in favour of Ramappa, the son of Gurushantappa. Basavanneppa did not have half share in the schedule property. His share was only 1/3rd. Therefore, the recital in the gift deed that Basavanneppa gifted half share to Ramappa would not confer any title in Ramappa to the extent of half share.
: 13 :
17. The question is, whether the said gift deed confers 1/3rd share on Ramappa. The gift deed is a document which is compulsorily attestable. No attesting witness to prove the gift deed is examined. The defendants have specifically denied the very execution of the gift deed. Even if the attesting witnesses were not alive, the law contemplates that the persons who are familiar with the signature of the attesting witness could be examined to prove due attestation. No effort is made in this direction. Even if it is to be held that the document being 30 years old and coming from a proper custody, a presumption of due execution should be drawn by the Court concerned, neither such a request was made by the plaintiffs nor the Courts have made any attempt to look at the case in that angle. The lower Appellate Court has proceeded on the assumption that, even if the gift deed is true, a coparcener cannot bequeath his undivided share in favour of the coparcener or a member of the family. If such a : 14 : bequeath is made, it is void and, therefore, it does not convey any title in favour of the beneficiary under the gift deed. The gift deed is of the year 1950 i.e., prior to coming into force of the Hindu Succession Act of 1956. The Hindu Law as stood then is to be seen. Under the Madras School of Mitakshara Law, a coparcener or the 'kartha' of the joint hindu family had no power to make a gift of even his undivided interest in the coparcenery properties. Such a gift made was invalid and void. This Court had an occasion to consider the effect of the gift of a coparcener property in the case of Shankarayya Balayya Pujari vs. Champabai reported in ILR 1988 Kar 2348. It was held that the manager cannot gift even his interest to any member of the family or to a stranger unless it is for a pious purpose to a small extent recognised by law. Such a gift becomes void as it is not permitted in law. Therefore, in the instant case, Basavanneppa, even if he has executed a gift deed as per Ex.P.5 on 09.03.1950 gifting his share in the : 15 : coparcenery property in favour of Ramappa, as the law stood then, the said gift is void ab initio. Therefore, under the gift deed, Ramappa did not get the 1/3rd share belonging to Basavanneppa. If the gift is held to be void, Basavanneppa having died issue-less as he was not married, his share in the co-parcenery property devolves on the remaining coparceners by survivorship. Thus, share of the remaining coparceners get enlarged by the death of Basavanneppa. Therefore, the schedule property being coparcenery and only two coparceners are remaining each one of them would be entitled to half share. Then, the plaintiffs, who represent one branch of coparcener, would be entitled to half share and the defendants, who represent another branch of coparcener, would be entitled to other half share in the coparcenery property. Therefore, the lower Appellate Court was justified in decreeing the suit of the plaintiffs for partition and separate possession of their half share in the suit schedule property. The judgment and decree : 16 : of the lower Appellate Court is legal and valid and is supported by the legal evidence, as such, it does not suffer from any legal infirmity which calls for interference.
In the result, I pass the following:
ORDER Appeal is dismissed.
Parties to bear their own costs.
Sd/-
JUDGE Vnp*/kms